STATE Vs. GOMA

JUDGEMENT

(1.) This reference has been made by the Collector u/s. 232 of the Rajasthan Tenancy Act vide his order dated 6 -3 -1969.

(2.) The main contention raised by the Collector in the aforesaid reference is that originally the suit filed u/s. 88 of the Rajasthan Tenancy Act Goma vs. State, was decreed on 4 -10 1968 and no appeal was filed against the aforesaid order by the State and the decree was accordingly passed and became final but when the decree was sent to the Tehsildar for execution, he has made a reference to the Collector for setting aside the aforesaid order being repugnant to the provisions of Section 16 of the Rajasthan Tenancy Act.

(3.) I have heard the counsel for the decree -holder non applicant Goma and bis main argument is that for the same property a declaration by way of suit has been obtained by the non -petitioner and the order of the S.D.O. in the suit dated 4 -10 -1968 has become res judicata and, therefore, the purport of the decree cannot be circumvented by the Tahsildar or the Collector under the pretext of Section 16 by way of a reference. In fact in the original suit, this plea of non -accrual of the khatedari rights in accordance with Section 16 of the Act had no where been raised by the State and now by way of reference, the State cannot circumvent the effect of the decree. Secondly it is argued that Section 232 of the Rajasthan Tenancy Act pertains to examination of legality or propriety of the orders passed as to the regularity of the proceedings and this Section does not cover decrees passed in suits and hence in accordance with Section 208 of the Rajasthan Tenancy Act, the Civil Procedure Code will apply in the present case. The definitions ofdecree and order given in Section 2 of the CPC are very distinct and, therefore, in the present case this decree does not come within the purview of a reference u/s. 232 of the Rajasthan Tenancy Act.